The Court of Appeal has issued its judgement in the case of OSS Group Limited, whose business consists of collecting waste lubricating and fuel oil from other businesses and converting it into a marketable fuel product, Clean Fuel Oil.

The issue in the case was at what point the material ceases to be 'waste' for the purposes of the Waste Framework Directive? Is it, as was advanced by OSS, when the material has been recovered for use as a fuel, or is it only when the material is actually burned and the energy recovered, as was submitted by the Environmental Agency?

The position taken by the Environmental Agency would force companies burning Clean Fuel Oil to incinerate it in Waste Incineration Directive compliant plant, making it more difficult to burn the recycled fuel than to burn a virgin fuel oil.

Since the majority of OSS Group's customers are roadstone coating plants and similar, if the Environment Agency had succeeded in their arguments, the majority of the market for Clean Fuel Oil would have been unable to continue to use it, and would have had to revert to using virgin fuel products.

OSS argued that waste material ceases to be waste if it satisfies a two stage test:-

Is the material sufficiently analogous with the virgin product/raw material genuinely to replace it?

Is the material analogous in terms of the environmental risks posed by it?

However, Counsel for the Agency sought to apply a much higher standard to the end-of-waste test, that of the recovered material being identical to the virgin equivalent.

Moreover, they said that if the purpose of a waste material is to be burned, then it will remain waste until this has been completed, regardless of whether the material has received prior treatment. (The only exception the Agency was prepared to accept was where the waste oil feedstock was waste fuel oil, and only then if it was chemically and physically identical to the original material.

Applying ECJ case law (particularly the ARCO and Epon cases), the Court of Appeal decided that a material ceases to be waste if it can be recovered to an acceptable standard and in such a way that it may be used in a manner similar to the original product.